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People v. Hernandez

June 28, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CUAHATEMOC HERNANDEZ, DEFENDANT-APPELLANT,



Appeal from the Circuit Court of Cook County. No. 98 CR 24373 Honorable James Schreier, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

UNPUBLISHED

Defendant Cuahatemoc Hernandez was charged with first degree murder and attempted first degree murder. After a jury trial, he was found guilty on both counts and was sentenced to 44 years' imprisonment for first degree murder and a concurrent term of 6 years for the attempted first degree murder charge. Defendant now appeals, and no issues are raised regarding the pleadings. For the reasons that follow, we affirm.

At trial, Alfredo Leon testified that on April 16, 1998, around 8 p.m., he drove to the house of his cousin, Jose Ortega, to pick him up. The two of them then drove to 18th Street. When they saw the defendant walking down the street, Jose instructed Alfredo to pull over so he could talk to his friend. Alfredo testified that he had seen the defendant two or three times before and knew the defendant as "Temo." The defendant got into the backseat of the two-door Toyota and the three men then "drove around." At the defendant's request, Alfredo stopped the car at West 18th Place and May Street so that the defendant could talk to some of his friends. When the defendant got back into the Toyota, he told Alfredo to drive to the defendant's house so that he could get something. Alfredo testified that he drove the defendant to his home and that he parked in an alley near the house. Alfredo and Jose remained in the car while the defendant got out and walked toward 19th Place. After approximately five minutes, the defendant emerged from a house that was not his own. Defendant had one hand under his coat and he walked toward the driver's side of the Toyota. Alfredo was about to open the door when the defendant brandished a gun, pushed it through the driver's side window, and then started shooting at them both. Alfredo stated that he covered his head with both of his hands and ducked down into the car seat. He also testified that he heard approximately nine gunshots. One bullet struck Alfredo in the back of the head, injuring his fingers in the process.

After the shooting stopped, Alfredo turned and saw that Jose was slumped over in the car seat. He testified that, at the time, he did not know if Jose was alive or dead. Alfredo then drove his car to the home of Jose's brother, Mauricio Ortega, about one block away. Upon arriving at Mauricio's house, Alfredo got out of the car and ran to see Mauricio.

After Alfredo testified, Mauricio took the stand and confirmed that Alfredo came to his door on the night of April 16, 1998. Alfredo was bleeding and was "very nervous, very scared" and "very excited" as he told Mauricio that "Temo" had shot at them. Mauricio then got into the car and instructed Alfredo to drive them to Cook County Hospital. Alfredo parked near the emergency entrance of the hospital and ran inside where he told police officers and the emergency medical personnel what had happened. The doctors put Jose on a stretcher and rolled him into the emergency room and examined Alfredo for his injures.

Jose died as a result of multiple gunshot wounds. During the autopsy, the medical examiner found one bullet wound to the deceased's inner right thigh, one to the back of his left hand near the base of his thumb, and one to the back of his head. The wounds were consistent with Jose being in a seated position and the shooter standing above him and on his left. However, there was no evidence of close-range fire on Jose's skin. Close-range stippling usually occurs when the weapon is fired from 18 inches away or closer. The parties stipulated that a firearms expert would testify that all three bullets recovered from Jose's body were fired from the same gun.

Alfredo was treated at Cook County Hospital for a period of one week. During that time, police officers visited Alfredo, and he told them that "Temo" was the person who had shot him and his cousin. He also gave the officers the defendant's address. In addition, both Alfredo and Mauricio identified a photograph of the defendant. At trial, Alfredo denied telling police officers who were present in the emergency room that he and the others had been at a party, had an argument, and that the shooting occurred outside of the party.

One week after he was released from the hospital, Alfredo moved from Illinois to Nebraska. At trial, Alfredo explained that he moved away because he was afraid of the defendant's family. After a few months, Alfredo returned to Chicago so that he could meet with Detectives Vasilopoulos and Deacy on July 15, 1998. Subsequently, however, defendant moved from Nebraska to Idaho, again allegedly out of fear of the defendant's family. He also acknowledged at trial that the State's Attorney's office had to send investigators to bring him back for trial. The State's Attorney's office paid for his transportation to Chicago so that he could testify.

Detective Vasilopoulos testified that at 10 p.m., on April 16, 1998, he and his partner, Detective Deacy, drove to Cook County Hospital to respond to a radio call. Upon arrival, he found the victim's car parked outside the emergency room entrance. A window had been shattered and there was blood in the car. Detective Vasilopoulos found a quarter-sized spot of saliva on the top of the driver's side door. He testified that it looked as if someone had spit on the car's door. This saliva was inventoried and tested, and it was determined to have a DNA profile that matched that of the defendant. In fact, it was stipulated at trial that this DNA profile would be expected to occur in approximately 1 in 2.1 quadrillion unrelated Hispanic persons. However, there was no fingerprint evidence linking the defendant to the car.

Victoria Hernandez Hill, the defendant's sister, testified that she and her brother were living in the same house in West 18th Place in Chicago during April of 1998. She testified that he left their home on the night of April 16, 1998, and she did not see or hear from the defendant again until August 21, 1998.

Defendant was arrested in California on July 22, 1998. He was in possession of a California state identification card that listed his name as "C. Miguel Hernandez." The defendant's brother, Santiago, lived in California and, prior to the incidents in this case, the defendant had visited him three or four times for different periods of time.

For the defense, police officer Terry Abbate testified that he was already present at Cook County Hospital when Alfredo arrived on the night of the shooting. Officer Abbate interviewed Alfredo within two to four minutes of Alfredo's arrival at the hospital. Abbate testified that Alfredo was "very frantic" during the interview and that Alfredo was attempting to get doctors to come outside and help his cousin, who was still in the car. Abbate testified that after he spoke with Alfredo, he told his partner what Alfredo had said. When Officer Abbate's partner returned to the police station, he prepared a written report. Later, Abbate read and signed the report. According to the report, Alfredo identified himself as Leon Villejo and stated that there were three victims; that the three victims were at a party at a nearby house; that the three victims got into an argument with the defendant; and that they went outside with the defendant to discuss the matter.

Moreover, Officer Vasilopoulos testified that, in his interview with Alfredo, Alfredo stated that he drove to Jose's house in the evening on April 16, 1998, and that Jose was taking a shower. Alfredo stated that Jose told him to "go pick up Temo," and that he then drove around 18th Street by himself. Finally, he stated that after he picked up Temo, he ...


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